ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-07-060438-00
DATE: 20120425
B E T W E E N:
Dante Emmanuel Biding
In Person.
Applicant
- and -
Michelle Marie Biding
In Person.
Respondent
HEARD: January 5, 6, 9-13, 2012
REASONS FOR JUDGMENT
Daley J.
[1] The parties in this action proceeded to trial on the following three principal issues:
(1) the treatment of the matrimonial home for the purpose of equalization of net family property;
(2) the spousal support obligations of the Applicant; and
(3) child support.
[2] Interconnected with these three issues were competing claims by each party with respect to:
i. accounting for monies received and spent related to the proceeds paid to them on a mortgage refinancing;
ii. carrying costs related to the matrimonial home; and
iii. paid and unpaid child and spousal support.
[3] The parties were married on October 21, 1989. Though the Applicant began living in the basement of the matrimonial home separate from the Respondent, in March 2003, the parties agreed at the opening of trial that the date of separation for the purpose of determining the issues at stake was to be July 1, 2004.
[4] On April 2, 2011 Lemon J. granted the parties a divorce order.
[5] The Applicant was born December 27, 1962 and the Respondent was born on April 25, 1967.
[6] The parties have two children: a daughter, Melissa Anne More-Biding born June 1, 1988 and a son, Michael Daniel More-Biding born April 26, 1992.
[7] The Respondent and two children presently reside in the parties' matrimonial home which is located at 62 Prairie Rose Circle, Brampton, Ontario.
[8] The parties had agreed upon joint custody of their children.
[9] The Respondent is currently employed on a full-time basis at Wal-Mart.
[10] As of the date of trial, the Applicant was unemployed and seeking employment. His entitlement to employment insurance benefits was to end in March of 2012.
[11] The parties both had lawyers representing them at various points in time over the course of this action; however they appeared at trial and presented their cases without counsel.
[12] As will be discussed below, the evidence offered by these parties was difficult to assess with great precision. Unfortunately, I have concluded that both parties were less than frank with each other and the Court, in the disclosure of their full and accurate financial circumstances and history.
[13] It was clear from the evidence offered and from the manner in which both parties conducted themselves during this trial that there is a very high degree of acrimony and distrust between the parties.
[14] Following the period where the parties lived separate and apart within the matrimonial home, the Applicant vacated the home in October of 2006.
[15] The children continued to reside in the matrimonial home with the Respondent.
[16] The matrimonial home was purchased by the parties as joint tenants in October of 2001. Not until this trial commenced was it noted that the Applicant's brother, Edward Biding has an undivided 1% interest in the title to the home.
[17] As it was necessary to determine each parties' respective interest in the matrimonial home and how it was to be divided, Edward Biding's interest in the property had to be considered.
[18] At my direction, the Applicant arranged for his brother to appear as a witness on this trial.
[19] Edward Biding testified that he was aware of his titled interest in the matrimonial home and he confirmed that he had co-signed a mortgage in favour of CIBC in respect of that property. He acknowledged that he was potentially liable under the terms of that mortgage, having co-signed with the Applicant and the Respondent.
[20] As there was concern regarding Edward Biding's full understanding of his potential liability with respect to the outstanding mortgage on the matrimonial home, I directed that he seek legal advice from a solicitor before completing his evidence. A recess was taken to allow the witness to consult with his solicitor.
[21] After having received advice from his solicitor, Edward Biding resumed his testimony and stated that he understood his potential liability related to the mortgage on the matrimonial home. He further stated that he did not wish to claim any interest in the matrimonial home or to take any position with respect to the issues in this trial. From his evidence, I am satisfied that he understood the nature of his liability exposure related to the mortgage on this property.
[22] On January 9, 2008, Corbett J. granted a comprehensive temporary order with respect to several matters including joint custody, child support and spousal support.
[23] The order also provided that the Respondent had the option to purchase the matrimonial home on the terms set out in that order.
[24] Further, the order required the Respondent to provide to the Applicant an accounting and a financial document brief, within 45 days, as to the disbursement of certain mortgage monies received by the parties on the refinancing of the mortgage on the matrimonial home.
[25] The Respondent did not exercise the option to purchase the matrimonial home as provided for in that order. Further, she did not provide the accounting or financial records to the Applicant as required by the order.
[26] The order of Corbett J. also provided that the Applicant pay to the Respondent spousal support in the amount of $530 per month commencing February 1, 2008, which order was reviewable in three years.
[27] The order further provided that after February 1, 2008, the Respondent was to be responsible for all carrying costs of the matrimonial home.
Equalization of Net Family Property
[28] Each party has filed statements with respect to net family property within the Amended Trial Record.
[29] The Applicant's Net Family Property Statement dated November 20, 2011 provides that the valuation date is March 1, 2003. The Respondent's Net Family Property Statement dated July 15, 2008 provides a valuation dated July 1, 2004. As noted, the parties agreed upon this date as the valuation date for the purposes of trial.
[30] The Applicant's Net Family Property Statement provides that the Respondent pay to the Applicant $13,915.95.
[31] The Respondent's Net Family Property Statement provides that the Applicant pay to the Respondent $30,036.85.
[32] During the course of this trial, evidence with respect to the equalization of net family property, including the treatment of the matrimonial home as an asset, spousal support, child support and carrying costs with respect to the matrimonial home were all rolled together by the witnesses both in their oral testimony and in the documentary evidence filed.
[33] The Applicant sought an unequal distribution of net family property. No evidentiary basis for this was established by the Applicant and as such this request is rejected.
[34] As noted, the mortgage on the matrimonial home was refinanced in June 2006 and according to a CIBC mortgage statement dated January 3, 2012 (Exhibit 12) the balance outstanding on the mortgage as of that date was $202,369.84.
[35] Both parties entered into evidence appraisals or letters of opinion as to the value of the matrimonial home. No viva voce expert opinion evidence was called. Both parties consented to simply filing the letters of opinion and appraisals.
[36] The Respondent filed in evidence two appraisals or opinions as to the value of the matrimonial home. The first was provided by Jim Parthenis of Carrington Appraisal Services, which was dated March 27, 2008. In this appraisal, it was concluded that the market value of the matrimonial home as of that date was $300,000.
[37] The Respondent filed a second opinion of value with respect to the matrimonial home in the form of a letter of opinion from realtor Sue Pukas, dated April 25, 2011, wherein she offered an opinion of value in the range of $337,000 - $349,000, which range recognized the need for certain repairs.
[38] The Applicant tendered in evidence a certificate of appraisal from Jim Parthenis, dated December 29, 2011, which was based on his earlier report of March 27, 2008 and did not involve a further inspection of the property prior to the opinion of value being offered. The updated opinion of value offered by this appraiser was in the sum of $360,000 as of December 29, 2011.
[39] The Respondent testified that she wishes to have the opportunity to buy out the interest of the Applicant in the matrimonial home. Although she testified that she had mortgage financing approved in the sum of $225,000, she acknowledged that she had no letter of commitment from any bank confirming this. No evidence in support of this position was offered.
[40] The Applicant seeks to have the matrimonial home sold and the net proceeds form part of the net family property for equalization.
[41] For the purpose of determining equalization of net family property, prior to the sale of the matrimonial home, in my view, a value of $350,000, would be appropriate, in the absence of more complete viva voce evidence as to value.
[42] Further, I am of the view, that the value of the matrimonial home shall be attributed equally to both parties.
[43] As noted, each party has filed Net Family Property Statements, however in several instances, the parties failed to offer evidence with respect to certain items contained in their statements. Further, credits have been claimed with respect to non-family assets, for example accounting with respect to the disbursement of mortgage monies received on the refinancing of the mortgage.
[44] In considering the evidence, the submissions of the parties and the documents they have tendered in evidence, I have endeavoured to cull out from the calculations, all of the items which do not properly form part of the determination of equalization of net family property.
[45] Many of the items referred to in each party's Net Family Property Statement were not addressed by the parties during their testimony at trial. Absent any evidence regarding those items, I cannot make a determination as to the validity or the quantum of the claim asserted, whether in the calculation of equalization of net family profit or in respect of any credits either party is claiming outside of that analysis.
[46] The Respondent took the position that the Applicant failed to declare, as part of his income, RRSP monies which were withdrawn in 2004 in the sum of $10,620. It was the evidence of the Applicant that these monies were withdrawn by him prior to the valuation date of July 1, 2004, for use in reducing joint debt and paying off family expenses. Although full particulars as to how these monies were applied was not offered in evidence, given that the RRSP account was liquidated prior to the date of valuation, it has not been taken into account in the determination of net family property for purposes of equalization.
[47] After determining the equalization of the net family property as set out below, consideration will then be given to credits and deductions to which each party may be entitled.
[48] The parties’ assets to be considered in equalization as reflected in their Net Family Property Statements are:
Assets and Liabilities
Assets
Applicant
Respondent
Matrimonial Home
$175,000
$175,000
Great West Life Pension
$21,520.24
$0
CIBC – RRSP
$0
$1,100
2000 Ford Windstar
$2,500
$0
Debts
CIBC Mortgage
$101,184.92
$101,184.92
Net Family Property
$97,835.32
$74,915.08
[49] Therefore, on equalization of net family property, I find that the Applicant owes the Respondent one half of the difference of the net family properties namely $11,460.
Credits and Deductions
[50] Each party has asserted that the other has failed to properly account for monies to which they were each entitled or has failed to make payments in respect of child support and spousal support.
[51] Each party provided detailed calculations of the credits and deductions they were entitled to which, in many instances, were unsupported by sufficient evidence to allow for a proper determination of their entitlement and the amount of any such entitlement.
[52] Included in this aspect of the evidence at trial was a dispute between the parties with respect to the disbursement of monies received by them on the refinancing of the mortgage on the matrimonial home. The record indicates that the sum of $43,316 was received by the parties upon the refinancing of their mortgage and that that sum was deposited into their joint CIBC bank account.
[53] It is the position of the Applicant that the Respondent has failed to properly account to him as to how those monies were disbursed. As I understand it, and so find, it was the shared intention of the parties that these monies were to be used to pay down debt at the time of the refinancing of the mortgage.
[54] The Respondent produced a table outlining how she disbursed the monies received on the mortgage refinancing in the sum of $43,316 through 2006 and 2007 and this was marked as Exhibit 11.
[55] It is the Applicant's position that while the Respondent properly paid off certain joint debts including the President's Choice Line of Credit of $15,714.33 and a CIBC Line of Credit of $8,008.59 and the Respondent acknowledges having taken $930 from the CIBC account, there remains unaccounted for $18,663.05 in respect of which he claims one half, namely $9,331.52.
[56] It is the Respondent‘s position that the Applicant agreed that she could retain any monies not otherwise used to pay down debt for her day-to-day living expenses. The Applicant denies this. In the context of all of the evidence, I cannot accept that such an agreement existed particularly given the acrimonious end to the parties' marriage.
[57] I also reach this conclusion as I find that the Respondent is less than credible in certain respects. She failed to accurately report her true income in her financial statement. She testified that her income for 2010 was $24,211 and that this represented income from all sources. However, at page 2 of her financial statement signed in November 2010, no spousal support is declared as being received on a monthly basis. In cross-examination the Respondent agreed that the sum of $530 per month in respect of spousal support was paid, and that the annual amount of $6,360 should have been included in her financial statement.
[58] The Respondent also acknowledged that she has received $400 per month from her daughter's boyfriend, who has been residing in the family home and that this annual amount of $4,800 was not reported as income. Therefore, her true income, taking into account spousal support paid in 2010 as well as monies paid by her daughter's boyfriend adds an additional $11,160 to her declared income in the financial statement thus bringing her total income for 2010 to $35,371.
[59] While neither the Applicant or the Respondent provided backup documentation with respect to many of the items referred to on examining the Respondent's document marked as Exhibit 11, wherein she outlines the disbursement of all the monies received on the mortgage refinancing at $43,316, it is clear that many of the disbursed amounts were in respect of Hydro, Rogers, water bills and gas bills within 2006 and 2007 as well as school expenses in the sum of $3,000 paid with respect to the parties' daughter Melissa.
[60] In my view, expenses incurred by the Respondent in the period between 2006 and 2007 with respect to Rogers, Bell, food purchased, gas for the car and Melissa's school expense are day-to-day expenses that should have been covered by the Respondent's income, spousal support and child support. These expenses should not have been paid from monies derived from the refinancing of the mortgage which were intended to be applied to reduce joint debts.
[61] In my view, accounting for the items of disbursement outlined in Exhibit 11, including the school expense related to Melissa which is not fully particularized in the evidence, the Applicant is entitled to a credit of one half of the total amount namely $2,473.69.
[62] As to acknowledged arrears of child support, the Applicant states that his liability should be fixed at $9,008.24 as outlined in his calculations set out at page four in the spreadsheet which was marked as Exhibit 4. The Applicant stated that as there was no outstanding order requiring the payment of child support, he paid none in 2007.
[63] As to the Applicant's employment, he testified that he was laid off from his full-time position in November of 2008 following which he was unemployed until March 2010, at which time he obtained a contract employment position which ended April 1, 2011. The Respondent acknowledges that the Applicant lost his employment in April 2011.
[64] The Applicant's income in 2008 for support purposes was $84,599. In 2009, the year of his layoff, his line 150 income was $45,830. In 2010, during his one-year employment contract, his line 150 income was $67,307. Commencing in April 2011 he was in receipt of employment insurance benefits and his line 150 income totalled $24,336.00 for 2011.
[65] As of the date of trial, the Applicant was in receipt of employment insurance benefits at the rate of $468 per week and his entitlement to those benefits would end in March of 2012.
[66] As noted, the Applicant submitted in evidence as Exhibit 4, a spreadsheet with respect to payments for spousal and child support. The Respondent submitted a similar document which was marked as Exhibit 14 wherein she sets out the spousal and child support payments and adjustments based on her recollections and calculations.
[67] The calculations set out in these two spreadsheets prepared by the parties are very similar, except that the Respondent does not give credit to the Applicant for his alleged over payment of child support of $8,418. As noted, these spreadsheet statements roll together the historic liability and payment calculations for both spousal and child support.
[68] The Respondent, in her spreadsheet, sets out the same arrears amount as the Applicant, namely $17,426.24 in respect of both support payments. However, it is unclear from both the Respondent's spreadsheet and her testimony at trial how she has reflected in the calculation of the Applicant's liability with respect to arrears of spousal and child support payments, the Applicant's declining income over the years 2008 through to 2011.
[69] In the Applicant's calculations running through to the end of December, 2011, similar to the calculations outlined in the Respondent's spreadsheet, he records that he has paid $51,052.76 in total spousal and child support in accordance with the terms of the order of Corbett J. In accordance with the terms of the order, the Applicant was required to pay spousal support of $24,910 in that period and child support in the sum of $43,569. The Respondent's calculations as set out in her spreadsheet coincide with these calculations.
[70] Both parties agree that there are, subject to adjustment, as of December, 2011 outstanding arrears in respect of spousal and child support of $17,426.24, as called for by the order of Corbett J. However, the Applicant has offered calculations with respect to the adjusted child support arrears he submits are owing by him as result of his reduced earnings, specifically commencing in April 2011 when his income of $67,307 per year from his contract position ended and he then began receiving employment insurance benefits.
[71] The Applicant's calculations with respect to arrears of support payments also reflect his position that the parties' son, Michael, would not be entitled to child support if he is not enrolled in school on a full-time basis.
[72] The Respondent entered into evidence a letter dated May 10, 2011 from Marguerite d’Youville Secondary School wherein it was indicated that Michael was registered as a full-time grade 12 student at the school and had been in attendance from September 5, 2006 until February 3, 2011. This evidence is uncontradicted and as such I find that Michael was enrolled in school on a full-time basis and is thus entitled to support.
[73] Having considered the Applicant's reduced income as set forth in his spreadsheet in Exhibit 4 and considering the requirements of the Federal Child Support Guidelines I am satisfied that the calculations of arrears put forward by the Applicant is correct and the arrears amount is $17,426.24. However, the child support actually paid by the Applicant from July 2010 through to February 2011 should have been paid on the basis of two children as opposed to one given the evidence that Michael was enrolled in full-time attendance at school at that time.
[74] On recalculating the Applicant's liability to pay child support based on his income of $67,307 for two children for the period between July 1, 2010 and February of 2011, the monthly child support amount must be increased from $622 to $1,005 as provided for in the Federal Child-Support Guidelines. This results in an increase in the Applicant's child support liability in the sum of $3,064 for that timeframe.
[75] Therefore, Applicant's claim of overpayment of child support of $7,404 must be reduced by $3,064. This results in a net increase in the arrears of both child and spousal support which totals the amount of $12,072.24.
[76] As such, I conclude that the Applicant's liability with respect to arrears payments as set forth in Exhibit 4 is correctly recalculated at $12,072.24.
[77] The Applicant acknowledged that as of the date of trial, he had not made any further payments in respect of spousal and child support in accordance with the order of Corbett J. reflecting the appropriate adjustment related to the child support amount called for by the Federal Child-Support Guidelines in the monthly amount of $206 based on his annual employment insurance benefit income of $24,336 in respect of one child, namely Melissa, who has been in attendance at school full-time.
[78] The Applicant shall pay spousal support of $530 per month in accordance with the terms of the order of Corbett J. and child support in the sum of $206 per month up to the date of release of these reasons for judgment.
[79] In accordance with the terms of the order of Corbett J., the Respondent was to be responsible for all carrying costs with respect to the matrimonial home as of February 1, 2008.
[80] In her evidence, the Respondent testified that she believed there was an agreement that she need not commence payment of carrying costs with respect to the matrimonial home until March of 2008. I can find no evidence of such agreement.
[81] The Applicant paid the mortgage for February and March of 2008, totalling the sum of $1,940.76, when the Respondent was obligated to do so and as such he is entitled to credit for these mortgage payments.
[82] The Applicant, in his submissions, claimed entitlement to occupation rent from the Respondent. No such claim was advanced in his pleadings and this claim was first raised in evidence and during his submissions at the conclusion of the trial. As such, as there is no claim properly before the Court for this relief and so no occupation rent is allowed. Further, subject to the adjustment noted above, the Respondent has been responsible for the caring costs with respect to the matrimonial home since February, 2008. As such, the Applicant, along with the Respondent will benefit from the apparent increase in value of the home since that time as reflected in the appraisal reports considered in evidence.
[83] The Respondent paid various dental expenses related to the children as well as hockey expenses since the parties separated totalling approximately $3,100. The Applicant acknowledged responsibility for payment of one half of these expenses. He testified that in some instances the expenses had never been presented to him. As a result, I find that the Applicant owes to the Respondent credit with respect to these child care expenses incurred at $1,550.
[84] The parties’ daughter Melissa, who was born June 1, 1988 and is now 23 years of age, is attending university on a full-time basis. It was expected that she would graduate in April 2012, however it was the Respondent's evidence that she has not yet been able to complete her university degree and that it will not be completed until the spring of 2013.
[85] In his closing submissions the Applicant indicated he agrees to continue paying child support in respect of Melissa so long as she continues in full-time enrolment in university through to the end of the 2013 spring term.
[86] No evidence was offered with respect to her ongoing expenses of attending university. As such, I order that, based on the Applicant's current income, he shall continue to pay child support in respect of Melissa in accordance with the Federal Child-Support Guidelines, until she has completed her degree program in the spring of 2013.
[87] The Applicant, in his closing submissions, stated that in the event Michael was enrolled and in attendance at school on a full-time basis he would pay the appropriate child support and section 7 expenses with respect to Michael.
[88] As to the Respondent's claim for spousal support, in her closing submissions she stated that she wishes to have five more years of spousal support paid to her due to her medical conditions and her limitations in her employment.
[89] As noted, the Respondent was born April 25, 1967. There is very limited evidence as to the Respondent's education and employment history and her transferable employment skills.
[90] As of the date of trial she was employed at Wal-Mart and her earnings from employment there were approximately $24,000 per year.
[91] The Respondent tendered in evidence a report dated May 18, 2008 from her family physician Dr. N.E. Loukides wherein her medical history is provided. The doctor confirms in his report that the Respondent has been his patient since December of 1979 and that she had been treated for multiple medical problems which limited her employment capabilities.
[92] The doctor notes in his report that the Respondent has been diagnosed with learning disabilities from childhood. In addition she has had a chronic problem with recurrent periods of depression and anxiety for which she was treated on an off and on basis since 1998. She suffers from stress effects and, as of the date of the report, was taking medication with respect to this. She suffers from associated tension headaches which affect her ability to work.
[93] The doctor further reported that the Respondent suffered from migraine headaches for many years and takes medication for that as well.
[94] Further, the doctor reported that the Respondent suffers from benign positional vertigo since at least October 2004, for which she is treated by medication. She has also, reportedly, been treated for this condition by an otolaryngologist.
[95] The doctor also reports that the Respondent sustained a cervical flexion-extension injury and injuries to her left shoulder and wrist in September and October of 2007 which limited her in her ability to carry out physical work.
[96] The Respondent testified that as a result of her benign positional vertigo diagnosis, she has received accommodations at her current place of work. She cannot climb ladders.
[97] She also testified, without further particulars, that she has had time off work from Wal-Mart due to stress, depression and anxiety. No detailed history with respect to her employment at Wal-Mart was offered by her.
[98] These parties were married in October 1989 and began living separate and apart under the same roof in March of 2003 with a divorce being granted in April of 2011, and thus they had a marriage of approximately 14 years. Although the evidentiary record is not entirely clear on the history, it appears that these parties lived in a relatively traditional family situation, where the Respondent was the homemaker and principally responsible for childcare. She has worked outside the home for some period, although the evidence is unclear as to when this commenced on a regular basis and what interruptions there were in employment.
[99] Considering the length of the marriage and that the Respondent's role was as a homemaker and primary childcare giver, I conclude that the Respondent has suffered financial disadvantages a result of the marriage, its breakdown and resulting economic hardship.
[100] The four objectives to be considered in making an order for spousal support pursuant to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) are set forth in section 15.2 (6):
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantage or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
See: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813.
[101] It is the Applicant's position that the Respondent should not receive any further spousal support and further, that given his present income as compared with the Respondent, she would not otherwise be entitled to spousal support.
[102] No one objective listed above predominates the analysis and the court must balance all of the above factors and objectives in the context of the circumstances.
[103] The first factor that must be considered when examining the means, needs, and other circumstances of the parties is the length of cohabitation. These parties cohabited for 14 years and they have two children.
[104] It has been uncontradicted by the Applicant, that the Respondent suffers from a learning disability and that her capacity to be engaged in full-time employment has been limited as result of the health conditions identified by her physician and outlined above. While the medical evidence offered dates back to 2008, as I understand the Respondent's evidence, particularly as it relates to her vertigo diagnosis, she continues to suffer from limitations with respect to certain aspects of her employment and I accept her evidence that she is limited in that respect.
[105] The medical evidence available is not current, however I conclude that the Respondent does suffer from the limitations described by her physician and that they impact on her ability to work and as such may impact on her ability to achieve promotions in her place of employment. The limitations in part relate to depression and anxiety which I conclude flow from the breakdown of the marriage.
[106] Where a spouse's health problems are related to a marriage or its breakdown, a spouse is entitled to receive support to compensate for the effect of the marriage until they overcome their health problems: Oakley v. Oakley (1999), 1999 5675 (BC SC), 49 R.F.L. (4th) 369 (B.C.S.C.); Laflamme v. Laflamme, [1998] O.J. No. 2775 ( Gen. Div.). This is to fill the spouse's need for financial assistance where they cannot maintain themselves and to avoid the prospect of them becoming a public charge.
[107] No evidence was offered by the Applicant contradicting or disputing the limitations of the Respondent, as outlined by her physician in his report and by her evidence.
[108] I am of the view that the Respondent is entitled to spousal support on non-compensatory grounds, as well based on her need and means, of the Applicant, historically, to pay. Again, this basis for spousal support entitlement also flows from the Respondent's health conditions and learning disability identified by her physician.
[109] As to the Applicant's means to pay spousal support, this is presently unclear on this record, given that at the time of trial the Applicant was still unemployed and approaching the end of his entitlement to employment insurance benefits which he stated would cease in March of 2012.
[110] The medical evidence offered by the Respondent was incomplete in that no clear, current diagnosis and prognosis is available with respect to her ability to work competitively.
[111] Although there are aspects of the evidence that are uncertain, notably, the Applicant's income and current ability to pay support, as well as the Respondent's current employment limitations, I am of the view that a review order would not be appropriate in the circumstances of this case.
[112] I conclude, given the limitations of the evidentiary record offered in this trial, recognizing that I have determined that the Respondent is entitled to spousal support on the basis indicated, and the absence of evidence as to the Applicant's income at this time, that the Applicant pay to the Respondent spousal support of one dollar per year, subject to further order of the court.
[113] In keeping with the terms of this order, the Applicant shall immediately upon obtaining employment advise the Respondent of the particulars of his employment, including the identity of his employer, and the particulars of his salary or remuneration. The Applicant shall also provide to the Respondent a letter from the employer confirming these particulars.
[114] Both parties shall provide to each other, on an annual basis, by May 1st of each year, copies of their T-4's setting out their earnings from employment, their income tax returns as filed by them with the Canada Revenue Agency and their Notices of Assessment when received.
[115] As noted above, I have determined that the Respondent has offered no evidence that she is in a position to acquire the interest of the Applicant in the matrimonial home and as such the property must be sold as provided for by s. 9 (1) (d) of the Family Law Act, R.S.O. 1990, c.F3. See: Leslie v. Leslie (1987), 1987 8321 (ON SC), 9 R.F.L. (3d) 82 (Ont. S.C.).
[116] Given that this property is held by these parties in joint tenancy, with no claim by the Applicant's brother being asserted, as discussed above, I direct that the matrimonial home shall be sold.
[117] The parties shall within 30 days agree upon and retain a real estate agent to sell the property municipally known as 62 Prairie Rose Circle, Brampton, Ontario. In the event these parties cannot agree upon a listing agent and listing price with respect to the sale of matrimonial home, they shall appear before me on an appointment arranged through the office of the Trial Co-ordinator at Brampton to obtain any required directions or orders.
[118] As Edward Biding is claiming no interest in the matrimonial home, his consent to the sale of the home and his signature on any documents required for the purpose of listing the property for sale or conveying title is dispensed with.
[119] The parties shall share equally in the net proceeds of sale from the matrimonial home after payment of the mortgage, taxes, legal fees, disbursements, and adjustments on closing, and the payment on equalization of the Net Family Property shall be adjusted accordingly.
[120] As noted above, the Respondent is entitled a credit for arrears of spousal and child support of $12,072.24 and $1,550 with respect to dental and hockey expenses for a total credit of $13,622.24.
[121] The Applicant is entitled to a credit of $1,940.76 related to mortgage payments for February and March, 2008 and in respect of the mortgage monies not applied to joint debt in the sum of $2,473.69 for a total credit of $4,416.45.
[122] The parties shall apply these credits in determining the amount each is entitled to and the distribution of the net proceeds of the sale of the matrimonial home, and payment on the equalization of Net Family Property.
[123] The child support and spousal support amounts payable, as noted above, shall be paid through the Family Responsibility Office. A Support Deduction Order shall issue.
[124] A copy of these reasons shall be sent to Edward Biding by ordinary mail at his last known address.
[125] In the event these parties seek costs of this trial, they shall each file written submissions as to costs within 15 days. The cost submissions shall be no longer than two pages plus a costs outline. No reply submissions shall be delivered.
Daley J.
Released: April 25, 2012
COURT FILE NO.: FS-07-060438-00
DATE: 20120425
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dante Emmanuel Biding
Applicant
- and –
Michelle Marie Biding
Respondent
REASONS FOR JUDGMENT
Daley J.
Released: April 25, 2012